Office of Lawyer Regulation v. Gerald P. Boyle

2015 WI 110

SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP482-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Gerald P. Boyle, Attorney at Law:

Office of Lawyer Regulation,
Complainant-Respondent,
v.
Gerald P. Boyle,
Respondent-Appellant.

DISCIPLINARY PROCEEDINGS AGAINST BOYLE

OPINION FILED: December 23, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 12, 2015

SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:

JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, J., dissents. (Opinion Filed)
NOT PARTICIPATING:

ATTORNEYS:
For the respondent-appellant, there were briefs by Gerald
P. Boyle, and Boyle, Boyle & Boyle, S.C., Milwaukee, and oral
argument by Gerald P. Boyle.

For the complainant-respondent, there was a brief by Robert
G. Krohn, and Roethe Pope Roeth, LLP, Edgerton, and oral
argument by Robert G. Krohn.
 2015 WI 110
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP482-D

STATE OF WISCONSIN : IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Gerald P. Boyle, Attorney at Law:

Office of Lawyer Regulation, FILED
Complainant-Respondent,
DEC 23, 2015
v.
Diane M. Fremgen
Clerk of Supreme Court
Gerald P. Boyle,

Respondent-Appellant.

ATTORNEY disciplinary proceeding. Attorney's license

suspended.

¶1 PER CURIAM. Attorney Gerald P. Boyle appeals the

report of Hannah C. Dugan, referee, who recommended that this

court suspend Attorney Boyle's Wisconsin law license for 60

days; require him to complete six continuing legal education

(CLE) credits in law office management and/or trust account

practices; require him to provide quarterly trust account

reports to the Office of Lawyer Regulation (OLR) for one year;
and require him to pay the full costs of this disciplinary
 No. 2014AP482-D

proceeding. The referee found that Attorney Boyle committed all

six charged counts of misconduct, which included trust account

violations; a failure to explain in writing the nature of his

proposed fee and subsequent fee changes, the purpose and effect

of the advanced fees he accepted, and the scope of the legal

services he would provide in exchange for those fees; a failure

to promptly comply with a client's reasonable requests for

information; and a failure to act with reasonable diligence and

competence.

¶2 We adopt the referee's findings of fact and

conclusions of law. We conclude that the referee's reasoning

with respect to discipline is persuasive. Accordingly, this

court concludes that a 60-day suspension of Attorney Boyle's

license to practice law in Wisconsin is an appropriate sanction

for his violations. We also agree with the referee's

recommendations to require Attorney Boyle to provide quarterly

trust account reports to the OLR for one year; to require him to

complete six CLE credits in law office management and/or trust
account practices; and to require him to pay the full costs of

this disciplinary proceeding, which total $24,917.89 as of

November 2, 2015.

¶3 Attorney Boyle has held a Wisconsin law license since

1962. He has been privately reprimanded three times.

¶4 In 2002, Attorney Boyle was privately reprimanded for

violating Supreme Court Rule (SCR) 20:1.3, SCR 20:1.4(b), and

SCR 20:1.16(d) for failing to act diligently with respect to a
criminal defendant's request for post-conviction relief, failing
2
 No. 2014AP482-D

to explain matters to the client so that the client could make

informed decisions, and failing to return the client's file.

See Private Reprimand 2002-09.

¶5 In 2009, Attorney Boyle was privately reprimanded for

violating SCR 20:1.3, SCR 20:1.4(a), SCR 20:1.16(d), and former

SCR 20:5.1(a) and (b). The violations involved multiple cases

assigned to associate attorneys working for Attorney Boyle. The

associates failed to take any meaningful action on those cases.

After Attorney Boyle became aware of significant problems in the

law firm's representation, he failed to take remedial action on

the cases. Attorney Boyle also delayed returning the file and

unearned fees of one of the clients for more than two years.

See Private Reprimand 2009-10.

¶6 In 2012, Attorney Boyle was privately reprimanded for

violating SCR 20:1.5(b)(1) and (2) for failing to prepare a

written fee agreement and failing to explain the purpose and

effect of any advanced fee received. See Private Reprimand

2012-23.
¶7 In its underlying complaint in this case, the OLR

charged Attorney Boyle with six counts of misconduct. Attorney

Boyle denied the misconduct charges in his answer.

¶8 Counts One through Five arise out of Attorney Boyle's

representation of D.P. in a consumer law/fraud matter. D.P.

collects John Lennon memorabilia. D.P. paid over $191,000 to a

gallery in Hawaii for various pieces of John Lennon memorabilia,

including drawings and a microphone supposedly used by Lennon.
D.P. paid over $95,000 to a gallery in Florida for various
3
 No. 2014AP482-D

drawings by Lennon. D.P. paid over $21,000 to a gallery in New

York for a drawing and handwritten letter by Lennon.

¶9 D.P. came to suspect the authenticity of the

purchases. In 2008 and early 2009, D.P. learned that that the

purchased items were counterfeit and/or not resalable.

¶10 D.P. retained a Waukesha County attorney who

successfully recovered the amount paid to the Hawaii gallery for

the microphone supposedly used by Lennon. This recovery still

left over $131,000 in Lennon drawings sold by the Hawaii gallery

that D.P. suspected were inauthentic.

¶11 D.P. consulted with an ink specialist to evaluate the

authenticity of his collection of Lennon drawings. The ink

specialist believed that many of the drawings were fraudulent,

as many of the inks used for the drawings were not commercially

available on the purported dates of the drawings. The ink

specialist referred D.P. to Attorney Boyle, with whom the

specialist had worked on a different, earlier matter.

¶12 In November 2009, D.P. sought legal representation
from Attorney Boyle regarding all of the remaining purchases.

Attorney Boyle initially told D.P. that he would handle the

purchases with all three galleries for a flat fee of $25,000.

Attorney Boyle did not prepare a written fee agreement, nor did

he communicate in writing the purpose and effect of any advanced

fees received from D.P.

¶13 In mid-November 2009, D.P. charged $10,000 to his

credit card in partial payment of Attorney Boyle's $25,000
advanced fee. Attorney Boyle did not deposit the $10,000
4
 No. 2014AP482-D

advanced fee payment into his client trust account but instead

deposited the payment into his law firm's operating account.

¶14 Not long thereafter, Attorney Boyle told D.P. that he

would need more money to handle the case(s) against all three

galleries. In January 2010, Attorney Boyle asked D.P. to send

$35,000 immediately, and told D.P. that he would need another

$35,000 in about six weeks. D.P. agreed to the proposal and

promptly gave Attorney Boyle a cashier's check for $35,000.

Attorney Boyle did not deposit the $35,000 advanced fee payment

into his client trust account but instead deposited the payment

into his law firm's operating account. Attorney Boyle did not

prepare a written fee agreement modifying his original oral fee

agreement with D.P., nor did he communicate in writing to D.P.

any changes in the basis or rate of the fee. Attorney Boyle

also did not explain in writing the purpose and effect of the

$35,000 advanced fee payment.

¶15 In January 2011, D.P. paid Attorney Boyle another

$20,000 to continue representation against the three galleries.
Attorney Boyle did not deposit the $20,000 advanced fee payment

into his trust account but instead deposited the payment into

his law firm's operating account. As with the payments twice

before, Attorney Boyle did not prepare a written fee agreement,

nor did he communicate in writing to D.P. any changes in the

basis or rate of the fee. Attorney Boyle also did not explain

in writing the purpose and effect of the $20,000 advanced fee

payment.

5
 No. 2014AP482-D

¶16 In December 2009, Attorney Boyle wrote letters to two

of the three galleries (the Hawaii and New York galleries),

alleging that the Lennon sketches that D.P. had purchased were

forgeries and stating that D.P. wanted to recover his

investment. In January 2010, Attorney Boyle wrote the Hawaii

and New York galleries again, noting that he had not received

any response from them. Attorney Boyle asked for the names of

their respective law firms and the existence of any insurance

coverage.

¶17 In May 2010, D.P. sought to discontinue Attorney

Boyle's representation due to frustration over the pace at which

the matters were progressing. Attorney Boyle ultimately

convinced D.P. to allow him to stay on the case.

¶18 In early June 2010, Attorney Boyle arranged for

another lawyer, outside of his firm, to meet with D.P. and write

a memo discussing potential lawsuits against one or more of the

three galleries. Attorney Boyle also met with the ink

specialist with whom D.P. had consulted and who had referred
D.P. to Attorney Boyle.

¶19 In June 2010, Attorney Boyle informed D.P. that the

statute of limitations for his claim under Wis. Stat. § 100.18

(the "Deceptive Trade Practices Act" or "DTPA") had expired as

to 10 of the 30 items he had purchased. The following day, D.P.

noted in an email to Attorney Boyle that the statute of

limitations would expire for additional items on July 3, 2010.

¶20 On July 2, 2010, Attorney Boyle filed a single lawsuit
against the Hawaii gallery in the United States District Court
6
 No. 2014AP482-D

for the Eastern District of Wisconsin. The lawsuit listed six

causes of action, including the DTPA cause of action.

¶21 Certain defendants to the Eastern District lawsuit

filed summary judgment motions that slowed the progress of the

lawsuit. D.P. sent Attorney Boyle multiple emails seeking

information about the case. Attorney Boyle and/or his firm

responded minimally to these requests. Attorney Boyle cancelled

various meetings D.P. had arranged, and failed to return many of

D.P.'s phone calls.

¶22 At Attorney Boyle's request, D.P. began an effort to

obtain print copies of his phone records for all outgoing and

incoming long-distance calls since 2007. Attorney Boyle had

told D.P. these records were critical to obtain personal

jurisdiction of the out-of-state galleries. When the phone

company informed D.P. that its policy required that the records

could be obtained only by subpoena, D.P. asked Attorney Boyle in

a July 2010 email to request a subpoena. D.P. asked Attorney

Boyle about the status of the subpoena in two subsequent emails
sent that same month. Attorney Boyle did not respond to D.P.'s

email inquiries. After continued inquiries from D.P., Attorney

Boyle's daughter (Attorney Bridget Boyle) stated in an August

2010 email to D.P. that she was in the process of preparing the

subpoena, but needed additional information.

¶23 In March 2011, D.P. renewed his request that Attorney

Boyle subpoena telephone records from D.P.'s telephone carrier.

After multiple unfulfilled promises by the Boyle law firm staff,
D.P. received a copy of an unsigned subpoena that Attorney
7
 No. 2014AP482-D

Bridget Boyle intended to file with the court, but never did

pursuant to Attorney Boyle's instructions. Attorney Bridget

Boyle never consulted with or informed D.P. about the fact that

she would not be filing a subpoena request with the court.

¶24 In 2011, D.P. tried to resolve his claims with the

Florida gallery. D.P. learned that the gallery planned to cease

operations and had filed a Voluntary Assignment for the Benefit

of Creditors. Attorney Boyle referred D.P. to an attorney in

Florida. Attorney Boyle forwarded fees to the Florida attorney

to assist D.P. with his legal claim as a creditor of the Florida

gallery. D.P. eventually settled his claims with the gallery,

with the help of the Florida attorney.

¶25 In February 2012, D.P. settled his dispute with the

New York gallery through subsequently-retained counsel and

without Attorney Boyle's involvement. Although D.P. recovered

the cost of his purchases, he did not recover attorney's fees or

other costs.

¶26 In April 2012, D.P. filed a grievance with the OLR
against Attorney Boyle.

¶27 In May 2012, D.P. hired a different lawyer to complete

the federal litigation involving the Hawaii gallery. This

lawyer settled the case in September 2012. The settlement

recouped D.P.'s costs in buying the disputed items from the

Hawaii gallery but did not recoup any attorney's fees or costs

incurred by D.P.

8
 No. 2014AP482-D

¶28 The OLR's complaint alleged the following counts of

misconduct arising out of Attorney Boyle's work on the D.P.

matter:

 Count One: By accepting advanced fee payments in the

amount of $10,000, $35,000, and $20,000 in

anticipation of providing legal representation to

D.P., and by failing to deposit those payments into

his trust account, instead depositing the money into

his law firm operating account, Attorney Boyle

violated SCR 20:1.15(b)(4).1

 Count Two: By accepting advanced fee payments from

D.P. in the amount of $10,000, $35,000, and $20,000,

by failing to communicate in writing the scope of the

representation, the basis or rate of the fee, and the

purpose and effect of the advanced fee payments, and,

in addition, by making changes to the fee agreement on

multiple occasions without the benefit of a writing,

Attorney Boyle, in each instance, violated SCR
20:1.5(b)(1) and (2).2

1
SCR 20:1.15(b)(4) provides:

Except as provided in par. (4m), unearned fees
and advanced payments of fees shall be held in trust
until earned by the lawyer, and withdrawn pursuant to
sub. (g). Funds advanced by a client or 3rd party for
payment of costs shall be held in trust until the
costs are incurred.
2
SCR 20:1.5(b)(1) and (2) provide:

(continued)
9
 No. 2014AP482-D

 Count Three: By failing to respond to D.P.'s multiple

requests for information regarding the subpoena for

telephone records, Attorney Boyle violated

SCR 20:1.4(a)(4).3

 Count Four: By failing to file a lawsuit prior to the

expiration of the statute of limitations under the

DTPA for multiple fraudulent sketches purchased by

D.P., and, in addition, by failing to take meaningful

action on behalf of D.P. to recover from the New York

gallery, Attorney Boyle violated SCR 20:1.3.4

(1) The scope of the representation and the basis
or rate of the fee and expenses for which the client
will be responsible shall be communicated to the
client in writing, before or within a reasonable time
after commencing the representation, except when the
lawyer will charge a regularly represented client on
the same basis or rate as in the past. If it is
reasonably foreseeable that the total cost of
representation to the client, including attorney's
fees, will be $1000 or less, the communication may be
oral or in writing. Any changes in the basis or rate
of the fee or expenses shall also be communicated in
writing to the client.

(2) If the total cost of representation to the
client, including attorney's fees, is more than $1000,
the purpose and effect of any retainer or advance fee
that is paid to the lawyer shall be communicated in
writing.
3
SCR 20:1.4(a)(4) provides that a lawyer shall "promptly
comply with reasonable requests by the client for information."
4
SCR 20:1.3 provides that "[a] lawyer shall act with
reasonable diligence and promptness in representing a client."

10
 No. 2014AP482-D

 Count Five: By allowing the statute of limitations

under the DTPA to expire for certain fraudulent

sketches purchased by D.P., therefore foreclosing the

possibility of D.P. recovering attorney's fees

incurred in recouping his losses for those purchases,5

Attorney Boyle failed to provide competent

representation to D.P., in violation of SCR 20:1.1.6

¶29 The sixth and last count in the OLR's complaint

concerns Attorney Boyle's representation of R.G. Authorities

charged R.G. with a variety of criminal counts. R.G. retained

Attorney Boyle shortly thereafter. R.G. paid $9,500 to Attorney

Boyle's law firm in anticipation of Attorney Boyle providing

legal representation. Attorney Boyle did not deposit the $9,500

advanced fee payment into his client trust account but instead

deposited the payment into his law firm's operating account. A

few weeks later, R.G. made a second payment of $9,500 to

Attorney Boyle's law firm in anticipation of Attorney Boyle's

future legal representation. Attorney Boyle again did not
deposit the $9,500 advanced fee payment into his client trust

account but instead deposited the payment into his law firm's

operating account.

5
The DTPA allows a successful plaintiff to recover
reasonable attorney fees. See Wis. Stat. § 100.18(11)(b)2.
6
SCR 20:1.1 provides that "[a] lawyer shall provide
competent representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation."

11
 No. 2014AP482-D

¶30 The OLR's complaint alleged the following misconduct

count arising out of Attorney Boyle's work on the R.G. matter:

 Count Six: By failing to deposit in his trust account

the two $9,500 advanced fee payments from R.G., paid

in anticipation of Attorney Boyle providing legal

representation to R.G., and instead depositing the

payments into his law firm operating account, Attorney

Boyle violated SCR 20:1.15(b)(4).

¶31 Following a two-day hearing on the complaint, the

referee submitted a report containing her findings of fact and

conclusions of law, as well as her recommendations for

discipline. The referee determined that the OLR had proven

misconduct in all six counts charged. The referee found that,

when Attorney Boyle failed to deposit D.P.'s and R.G.'s advanced

fee payments into his trust account (see Counts One and Six), he

knew fee rules existed but simply chose to disregard them. The

referee likewise found that, with respect to Count Two, Attorney

Boyle knew that written fee agreements were necessary but
nevertheless failed to prepare any writing that explained to

D.P. the nature of his proposed fee and subsequent fee changes,

the purpose and effect of the advanced fee payments he accepted,

and the scope of the legal services he would provide in exchange

for those fees. In the referee's view, this absence of a

written agreement contributed to "wildly differing testimony" by

Attorney Boyle and D.P. about the nature and goals of Attorney

Boyle's representation.

12
 No. 2014AP482-D

¶32 Concerning Attorney Boyle's lack of responsiveness to

D.P.'s inquiries regarding the subpoena for his telephone

records (see Count Three), the referee described as "[m]ore

appalling than unpersuasive" Attorney Boyle's explanation that

he did not believe the subpoena was necessary, and that he and

his staff members were essentially humoring D.P. into thinking

that they were addressing the issue, when in fact they were not.

¶33 Regarding the diligence and competence with which

Attorney Boyle pursued D.P.'s disputes with the three galleries

(see Counts Four and Five), the referee observed that Attorney

Boyle treated the matters as criminal fraud matters and

conspiracies to be undone instead of as consumer matters. He

did not withdraw from the representation despite his apparent

belief that he could not resolve them through negotiation or

litigation. He filed a federal lawsuit against the Hawaii

gallery after some of the claims had become time-barred. He did

not sue the New York gallery or engage in settlement talks. He

did not monitor the status of the Florida gallery; it was D.P.
who discovered the pending bankruptcy and the need to file a

creditor claim.

¶34 After determining that the OLR had proven by clear and

convincing evidence all six counts of misconduct as alleged in

its complaint, the referee turned to an appropriate sanction to

be recommended for Attorney Boyle's misconduct. In reaching her

sanction recommendation, the referee cited a number of cases,

two of which she believed were particularly analogous to the
instant matter: In re Disciplinary Proceedings Against
13
 No. 2014AP482-D

Anderson, 2010 WI 39, 324 Wis. 2d 627, 782 N.W.2d 100, and In re

Disciplinary Proceedings Against Theobald, 2010 WI 102,

329 Wis. 2d 1, 786 N.W.2d 834. In Anderson, a lawyer received a

60-day suspension for a lack of diligence related to his

handling of his client's criminal defense, failing to respond to

his client's reasonable requests for information and to

communicate case developments to his client in a timely manner,

and failing to explain matters to his client. In Theobald, a

lawyer received a 60-day suspension for a lack of diligence

related to her handling of her client's bankruptcy matter, and

failing to respond to her client's requests for information

regarding the status of her bankruptcy.

¶35 The referee noted that a variety of aggravating and

mitigating factors were relevant to her recommendation on

discipline. As aggravating factors, the referee pointed out

that Attorney Boyle has been disciplined previously; showed a

pattern of misconduct related to law office mismanagement;

committed multiple offenses; and refused to acknowledge the
wrongful nature of his conduct——all despite having substantial

experience in the law. As mitigating factors, the referee noted

that Attorney Boyle did not display a dishonest or selfish

motive; generally cooperated with the disciplinary proceedings;

and enjoys a good reputation in the profession.

¶36 The referee ultimately recommended a 60-day

suspension, as the OLR requested in its complaint and post-

hearing briefing. The referee also recommended that Attorney
Boyle be required to complete six CLE credits in law office
14
 No. 2014AP482-D

management and/or trust account practices, and to provide

quarterly trust account reports to the OLR for one year to

monitor his use of his firm's trust accounts. Finally, the

referee recommended the imposition of full costs.

¶37 Attorney Boyle appeals. As to Counts One and Six,

Attorney Boyle conceded the alleged misconduct in his briefing

and oral argument to this court. We find that his concessions

are supported by the record. Attorney Boyle accepted $65,000 in

advanced fee payments from D.P. and $19,000 in advanced fee

payments from R.G., without depositing them in his trust account

and without properly complying with the alternative fee

placement provisions permitted by SCR 20:1.15(b)(4m).7 These are

clear rule violations.

7
SCR 20:1.15(b)(4m) (Alternative protection for advanced
fees) provides:

A lawyer who accepts advanced payments of fees
may deposit the funds in the lawyer's business
account, provided that review of the lawyer’s fee by a
court of competent jurisdiction is available in the
proceeding to which the fee relates, or provided that
the lawyer complies with each of the following
requirements:

a. Upon accepting any advanced payment of fees
pursuant to this subsection, the lawyer shall deliver
to the client a notice in writing containing all of
the following information:

1. the amount of the advanced payment;

2. the basis or rate of the lawyer's fee;

3. any expenses for which the client will be
responsible;

(continued)
15
 No. 2014AP482-D

4. that the lawyer has an obligation to refund
any unearned advanced fee, along with an accounting,
at the termination of the representation;

5. that the lawyer is required to submit any
unresolved dispute about the fee to binding
arbitration within 30 days of receiving written notice
of such a dispute; and

6. the ability of the client to file a claim with
the Wisconsin lawyers' fund for client protection if
the lawyer fails to provide a refund of unearned
advanced fees.

b. Upon termination of the representation, the
lawyer shall deliver to the client in writing all of
the following:

1. a final accounting, or an accounting from the
date of the lawyer's most recent statement to the end
of the representation, regarding the client's advanced
fee payment with a refund of any unearned advanced
fees;

2. notice that, if the client disputes the amount
of the fee and wants that dispute to be submitted to
binding arbitration, the client must provide written
notice of the dispute to the lawyer within 30 days of
the mailing of the accounting; and

3. notice that, if the lawyer is unable to
resolve the dispute to the satisfaction of the client
within 30 days after receiving notice of the dispute
from the client, the lawyer shall submit the dispute
to binding arbitration.

c. Upon timely receipt of written notice of a
dispute from the client, the lawyer shall attempt to
resolve that dispute with the client, and if the
dispute is not resolved, the lawyer shall submit the
dispute to binding arbitration with the State Bar Fee
Arbitration Program or a similar local bar association
program within 30 days of the lawyer's receipt of the
written notice of dispute from the client.

(continued)
16
 No. 2014AP482-D

¶38 Attorney Boyle also conceded in his briefs to this

court the misconduct alleged in Count Two. Specifically, he

conceded that he did not explain in writing to D.P. the scope of

his representation, the basis or rate of his fee, the changes to

his fee, or the purpose and effect of the advanced fee payments

he had received. As with Counts One and Six, we find that this

concession is supported by the record.

¶39 Having conceded Counts One, Two, and Six, Attorney

Boyle's arguments necessarily focus on the remaining counts——

Counts Three, Four, and Five, all of which concern the D.P.

matter. We address each in turn.

¶40 As explained above, Count Three alleges that Attorney

Boyle violated SCR 20:1.4(a)(4) by failing to promptly comply

with D.P.'s reasonable requests for information regarding the

subpoena for telephone records. Attorney Boyle denies any

misconduct because, he claims, his firm initially told D.P. that

the subpoena request was being worked on, and later informed him

that it would be inadvisable to request a subpoena because it
might encourage opposing counsel to make a venue challenge.

Attorney Boyle also claims that D.P.'s requests for information

about the subpoena were infrequent, and their significance was

diluted by his many inquiries on other subjects.

d. Upon receipt of an arbitration award requiring
the lawyer to make a payment to the client, the lawyer
shall pay the arbitration award within 30 days, unless
the client fails to agree to be bound by the award of
the arbitrator.

17
 No. 2014AP482-D

¶41 The problem with Attorney Boyle's argument is that it

runs counter to the referee's factual findings. We may overturn

the referee's factual findings only if those findings are

clearly erroneous or, put more colorfully, if they "'strike us

as wrong with the force of a five-week-old, unrefrigerated dead

fish.'" United States v. Di Mucci, 879 F.2d 1488, 1494

(7th Cir. 1989) (citation omitted). The referee chose to

believe D.P.'s version of events; i.e., that D.P. made many

unheeded inquiries regarding the subpoena; that Attorney Boyle

had a dismissive attitude about D.P. seeking information about

the subpoena; that D.P. was misled into thinking that Attorney

Bridget Boyle had filed the subpoena request when in fact she

had not; and that no one from the Boyle firm informed D.P. that

Attorney Boyle had determined the subpoena request should not be

filed. It is not our place to reappraise the evidence unless it

plainly fails to support the findings of the referee——and that

is not the case here. These findings easily support a violation

of SCR 20:1.4(a)(4).
¶42 We turn next to Count Four, which alleges that

Attorney Boyle violated SCR 20:1.3 by failing to diligently

pursue D.P.'s claims. Attorney Boyle asserts that in order for

the OLR to prevail on Count Four, the court must determine, as

he writes in his brief, "that D.P. would have prevailed on the

viable causes of actions against galleries for violations of

DTPA. If this is not proven, there can be no violations found

. . . ." Thus, Attorney Boyle writes, the OLR needed to prove
that the memorabilia in question was fraudulent; that the three
18
 No. 2014AP482-D

out-of-state galleries had sufficient contacts with Wisconsin to

support jurisdiction here in a lawsuit alleging DTPA claims, or

if not, that the galleries' home states would have allowed

similar claims; and finally, that D.P. would have been

"guaranteed success and full recovery under the DTPA." Without

such proof, Attorney Boyle argues, the OLR cannot prevail.

¶43 But that is not true. Attorney Boyle confuses the

standard for a legal malpractice claim with the standard for a

lawyer misconduct claim. To prevail on a legal malpractice

claim, a plaintiff must prove duty, breach, causation, and

damages. See Lewandowski v. Continental Cas. Co., 88 Wis. 2d

271, 277, 276 N.W.2d 284 (1979). To establish causation and

damages in a legal malpractice action, a plaintiff must prove

that, but for the attorney's negligence, the plaintiff would

have prevailed on the underlying litigation. Id. As a

practical matter, this standard requires the plaintiff to prove

a case-within-a-case; i.e., that the plaintiff would have

prevailed on the merits of the underlying litigation. See
Glamann v. St. Paul Fire & Marine Ins. Co., 144 Wis. 2d 865,

870, 424 N.W.2d 924 (1988). That is the standard that Attorney

Boyle claims must be applied here.

¶44 The standard of proof in a lawyer disciplinary matter,

however, is much different. Whereas the goal of a legal

malpractice action is to put clients in the position they would

have occupied had the attorney not been negligent, the goal of a

disciplinary proceeding is something else entirely: to protect
the public, the courts, and the legal profession from attorneys
19
 No. 2014AP482-D

who fail to meet minimum standards of conduct. See In re

Disciplinary Proceedings Against Harman, 137 Wis. 2d 148, 151,

403 N.W.2d 459 (1987). "It is not the purpose of lawyer

discipline," we have noted, "to make whole those harmed by

attorney misconduct." Id. Thus, to prove misconduct, the OLR

need not prove causation and damages; i.e., to prove a case-

within-a-case. See id. Rather, the OLR must show by clear,

satisfactory, and convincing evidence that the respondent

attorney engaged in the alleged misconduct, see SCR 22.16(5)——

which, according to Count Four, was Attorney Boyle's failure to

act with reasonable diligence in representing D.P.

¶45 The referee's findings readily support a determination

that Attorney Boyle failed to act with reasonable diligence in

representing D.P. The duty of diligence requires that the

lawyer "act with commitment and dedication to the interests of

the client and with zeal in advocacy upon the client's behalf."

SCR 20:1.3, ABA Comment 1. In stark contrast to these

obligations, the referee found, among other things, that
Attorney Boyle failed to file suit before many of D.P.'s claims

became time-barred; failed to advance D.P.'s interests through

arbitration or settlement; and failed to explain to D.P. the

rationale (if any) for his lack of action.

¶46 As a defense, Attorney Boyle argues on appeal that he

could not have advanced D.P.'s claims more than he did because

the claims were borderline-frivolous. If that is so, however,

then Attorney Boyle had a responsibility to thoroughly explain
his position to D.P. The referee found that he did not do so.
20
 No. 2014AP482-D

What Attorney Boyle did, instead, was to continue to nominally

represent D.P. while allowing certain claims to stagnate and

others to expire altogether. That is not "diligence" as our

rules define it.

¶47 We move then to Count Five, which alleges that, by

allowing the statute of limitations under the DTPA to expire for

certain fraudulent sketches purchased by D.P., Attorney Boyle

failed to provide competent representation to D.P. in violation

of SCR 20:1.1. As he did with Count Four, Attorney Boyle

defends against Count Five by claiming that the OLR failed to

prove misconduct because it did not show that D.P. would have

succeeded on the DTPA claims that Attorney Boyle did not

litigate.

¶48 As we discussed above, Attorney Boyle misunderstands

the applicable standard of proof. The OLR need not prove that,

but for Attorney Boyle's misconduct, D.P. would have prevailed

on the underlying litigation. This must especially be true when

the misconduct being alleged is a lack of competence; i.e., a
claim that the respondent lawyer failed to show the necessary

knowledge, skill, thoroughness, and preparation reasonably

necessary for the representation. See SCR 20:1.1. It would be

an odd disciplinary system indeed were this court to place an

underworked case at the OLR's feet and demand that it prove the

underlying merits as a prerequisite to misconduct findings. No

lawyer should be allowed to transform his or her own failure to

advance a case into a shield against a misconduct charge.

21
 No. 2014AP482-D

¶49 The referee's findings readily support a determination

that Attorney Boyle failed to provide competent representation

to D.P. Among other things, Attorney Boyle showed a lack of

knowledge and skill in treating D.P.'s claims as criminal

matters and conspiracies to be undone instead of as consumer

matters. He also showed a lack of thoroughness and preparation

through his complacency toward protecting the timeliness and

recoverability of D.P.'s claims; it was D.P., not Attorney

Boyle, who sounded the alarm on statute of limitations problems

and the impending bankruptcy of the Florida gallery.

¶50 Similar to his argument as to Count Four, Attorney

Boyle argues on appeal that his failure to further advance

D.P.'s claims cannot be deemed to show a lack of competence

given that many of D.P.'s claims were borderline-frivolous. But

as explained above, this argument carries little weight. Part

of being a competent lawyer is letting clients know if, and why,

certain claims or defenses are unsustainable and should be

dropped. There are no factual findings to suggest that Attorney
Boyle did so here. Competent lawyering does not include leading

a client into thinking that their claims or defenses are being

fully represented when in fact they are not.

¶51 As for the level of discipline, we agree with the

referee that a 60-day suspension of Attorney Boyle's law license

is appropriate. As stated above, Attorney Boyle concedes the

misconduct alleged in Counts One, Two, and Six, which generally

concern his lack of a written fee agreement and his deposit of
D.P.'s and R.G.'s advanced fee payments into his business
22
 No. 2014AP482-D

account without properly using the alternative fee placement

provisions permitted by SCR 20:1.15(b)(4m). As also explained

above, we agree with the referee that Attorney Boyle failed to

promptly comply with D.P.'s reasonable requests for information,

and failed to act with reasonable diligence and competence in

representing D.P. These six counts of misconduct, when

considered together with Attorney Boyle's three prior private

reprimands, easily justify a 60-day suspension. See, e.g.,

In re Disciplinary Proceedings Against Hahnfeld, 2007 WI 123,

305 Wis. 2d 48, 739 N.W.2d 280 (60-day suspension for attorney's

misconduct, which included failing to act with reasonable

diligence in representing clients, failing to keep clients

informed, and failing to explain the basis or rate of fees);

see also In re Disciplinary Proceedings Against Kasprowicz,

2007 WI 67, 301 Wis. 2d 82, 732 N.W.2d 427; (60-day suspension

for attorney's failure to act with reasonable diligence and to

communicate with client in one case, failure in another case to

respond to numerous court orders and directives, failure in both
cases to deposit advanced fees into his client trust account,

and failure to cooperate with disciplinary investigation); see

also In re Disciplinary Proceedings Against Harris, 2010 WI 9,

322 Wis.2d 364, 778 N.W.2d 154 (60-day suspension for failure to

keep a client informed as to the status of a matter and failure

to keep a client informed and respond to a client's request for

information).

¶52 We pause to remark briefly on Attorney Boyle's claim
that the length of his career (he has practiced since 1962) and
23
 No. 2014AP482-D

the fact that he is nearing retirement should mitigate against a

suspension of any length. We disagree. Attorney Boyle has been

privately reprimanded three times, and our policy of progressive

discipline supports a suspension of his law license for the

60-day minimum period. In addition, our precedent shows that

age is not necessarily a mitigating factor. See In re

Disciplinary Proceedings Against Fennig, 227 Wis. 2d 379,

595 N.W.2d 710 (1999) (60-day suspension, rather than public

reprimand, imposed for over 70-year-old attorney with no

disciplinary history). As we explained in In re Disciplinary

Proceedings Against Carter, 2014 WI 126, 359 Wis. 2d 70,

856 N.W.2d 595, "[t]his court cannot countenance a rule that

would soft-pedal the discipline owed to attorneys" who commit

misconduct "so long as they do so in the twilight of their

careers." Id., ¶ 26.

¶53 Attorney Boyle does not specifically challenge the

referee's recommendation that he be required to complete six CLE

credits in law office management and/or trust account practices
and to provide quarterly trust account reports to the OLR for

one year to monitor his use of the law firm's trust accounts.

This court has imposed similar requirements in the past. See,

e.g., In re Disciplinary Proceedings Against Steinberg,

2007 WI 113, 304 Wis. 2d 577, 735 N.W.2d 527. We do so again

here.

¶54 We turn, finally, to the monetary aspects of the

referee's recommendation. Attorney Boyle does not raise any

24
 No. 2014AP482-D

objection to the imposition of costs. We impose them in full.

The OLR does not seek restitution. None is ordered.

¶55 IT IS ORDERED that the license of Gerald P. Boyle to

practice law in Wisconsin is suspended for a period of 60 days,

effective January 22, 2016.

¶56 IT IS FURTHER ORDERED that, for a period of one year,

Gerald P. Boyle must file quarterly trust account reports with

the Office of Lawyer Regulation as a condition of his practice

of law.

¶57 IT IS FURTHER ORDERED that Gerald P. Boyle attend a

minimum of six hours of continuing legal education in law office

management and/or trust account practices.

¶58 IT IS FURTHER ORDERED that within 60 days of the date

of this order, Gerald P. Boyle shall pay to the Office of Lawyer

Regulation the costs of this proceeding.

¶59 IT IS FURTHER ORDERED that compliance with all

conditions of this order is required for reinstatement. See

SCR 22.28(2).

25
 No. 2014AP482-D.ssa

¶60 SHIRLEY S. ABRAHAMSON, J. (dissenting). I write in

dissent in several attorney discipline cases because I have

concerns about the discipline imposed.

¶61 In the instant case, the referee found (and the court

agreed) that the respondent attorney committed all six charged

offenses (including two trust account violations). The

discipline: a 60-day suspension plus conditions. The

respondent attorney had received three private reprimands

between 2002 and 2012.

¶62 How can this level of discipline be justified in light

of OLR v. Crandall, 2015 WI 111, ___ Wis. 2d ___, ___

N.W.2d ___? Attorney Crandall is on his fifth brush with the

OLR in the seven years since 2008. He has been disciplined four

times previously: a three-month suspension, a public reprimand,

a 30-day suspension, and a five-month suspension. It does not

appear that the previous discipline had the impact the court

intended. Nevertheless, the court now imposes another public

reprimand. Yet Attorney Boyle receives a 60-day suspension,
even though his disciplinary history is much less serious than

Attorney Crandall's.

¶63 I write also to state my difficulty reconciling the

significantly different levels of discipline imposed in the

following cases.

• OLR v. Krogman, 2015 WI 113, ___ Wis. 2d ___, ___

N.W.2d ___: Upon stipulation admitting factual

allegations, the court orders a four-month suspension
of license and conditions upon reinstatement. The

1
 No. 2014AP482-D.ssa

complaint alleged 22 counts of professional misconduct

involving four clients, misconduct relating to license

suspension, and misconduct relating to trust accounts.

The four-month suspension seems too light.

• OLR v. Aleman, 2015 WI 112, ___ Wis. 2d ___, ___

N.W.2d ___: Illinois imposed a two-year suspension

for two counts of misconduct stemming from co-founding

and working with a national debt settlement firm.

Upon stipulation of the parties, this court orders

reciprocal discipline in Wisconsin. The two-year

suspension seems too harsh compared to the discipline

imposed in other cases.

• OLR v. Sayaovong, 2015 WI 100, 365 Wis. 2d 200, 871

N.W.2d 217: This per curiam was released November 18,

2015, imposing suspension for a period of six months.

Attorney Sayaovong defaulted in the discipline case.

The complaint alleged six counts of misconduct, four

counts involving two clients and two counts involving
another client. In 2014 Attorney Sayaovong was

publicly reprimanded for misconduct in two separate

client matters. See OLR v. Sayaovong, 2014 WI 94, 357

Wis. 2d 312, 850 N.W.2d 940. The discipline does not

seem consistent with the discipline imposed in other

cases.

¶64 For the reasons set forth, I write about each of these

cases.

2
 No. 2014AP482-D.ssa

1